Authorizing Certain Aliens With Deferred Action To Work Is Consistent

With Established Immigration Policy Objectives

The longstanding regulations governing work authorization reflect sensible policy concerns, which became even more acute in 1986 when Congress prohibited employers from hiring aliens without work authorization. Absent work authorization, aliens, particularly those of modest means, would likely have no lawful way to support themselves or their families, and might therefore become a burden on those closest to them. Permitting aliens without means to remain in this country while

12 _{Another example is also telling. In 1996, Congress for the}

first time established time-limits for grants of “voluntary departure”—another category of aliens not authorized to be in the United States who have long been eligible for work authorization under the regulations. See Pub. L. No. 104-208 § 304(a)(3), 110 Stat. 3009, 3009–596 (1996) (codified as amended at 8 U.S.C. § 1229c(a)(2)(A)). Since, under INS’s regulations, aliens with voluntary departure could be granted work authorization for the period of the voluntary departure, this legislation effectively restricted the duration of work authorizations for those aliens. See 52 Fed. Reg. 16,216, 16,227 (May 1, 1987) (adding 8 C.F.R. § 274a.12(c)(12)). Because Congress did nothing to restrict the availability of work authorization in connection with deferred action, INS explained that deferred action might be available where voluntary departure no longer was, and that, if deferred action were granted, “employment authorization may be granted under the provisions of §274a.12(c)(14).” 62 Fed. Reg. 10,312, 10,325 (Mar. 6, 1997).

denying them permission to work would also cause economic distortions. Aliens in this position might turn to illegal work for lower wages in exploitative conditions, causing downstream effects on the labor market, including adverse effects on American workers. See Executive Office of the President, Council of Economic Advisers, The Economic Effects of Administrative Action on Immigration at 10 (2014).

Aliens with deferred action may obtain work authorization only if they can show “economic necessity” as defined by federal poverty guidelines. See 8 C.F.R. §§ 274a.12(c)(14), (e). This condition ensures that those aliens who remain in the country but who lack the means necessary to support themselves are able to earn a living through legitimate, above-board employment. The rule is consistent with the policy objective of ensuring that aliens who are not subject to deportation will live in the “sunlight” instead of “the shadows.” See Reagan, IRCA Signing Statement; see also DAPA Memo at 3.

The economic necessity condition has been a part of the work authorization rule from the very beginning. INS’s first proposed rules in 1979 would have granted authorization only “if the alien establishes to the satisfaction of the district director that he is financially unable to maintain himself during that period.” 44 Fed. Reg. at 43,480. Though commenters expressed “opposition” to this requirement, arguing that it would “unduly burden the alien and Service,” INS retained it, limiting authorization to that subset of aliens with deferred action who could establish “to the satisfaction of the district director that he/she is financially unable to

maintain himself/herself and family without employment.” 46 Fed. Reg. at 25,080-081. INS chose to “alleviate” the complained-of “burden” by clarifying the standard, adopting the “Community Service Administration Income Poverty Guidelines” as “the basic criteria to establish economic necessity for employment authorization requests where the alien’s need to work is a factor” (including aliens with deferred action). 46 Fed. Reg. at 25,080.13

Following IRCA, INS re-promulgated its rule and included both the “economic necessity” requirement and the reference to the poverty guidelines. 52 Fed. Reg. at 16,228. This language remains on the books today. 8 C.F.R. §§ 274a.12(c)(14) & (e).

Allowing aliens whose removal has been deferred to work upon a showing of economic necessity is a sensible tool employed for decades by both Republican and Democratic administrations to advance the humanitarian and economic objectives underlying the federal immigration laws. These policies were adopted carefully and thoughtfully over the course of decades, and they have been identified, studied, and ratified by Congress, including after the 1986 enactment of IRCA. At a minimum, the regulations reflect the Executive Branch’s longstanding interpretation of the legal authorities granted to INS and DHS by federal

13 _{INS later updated its regulation to acknowledge legislation}

requiring the Secretary of HHS to update these guidelines periodically. See 46 Fed. Reg. 55,920, 55,921 (Nov. 13, 1981) (citing Pub. L. No. 97-35 § 673, 95 Stat. 357, 512 (1981)).

immigration laws. As such, they are worthy of this Court’s deference. See Barnhart v. Walton, 535 U.S. 212, 220 (2002).

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted, MARTIN S.LEDERMAN

GEORGETOWN

UNIVERSITY LAW CENTER 600 New Jersey Ave, N.W.

Washington, D.C. 20001 (202)662-9937 MICHAEL J.GOTTLIEB Counsel of Record ALEXANDER I.PLATT JOSHUA RILEY ALEXANDER TABLOFF BOIES,SCHILLER & FLEXNER LLP 5301 Wisconsin Ave, N.W. Washington, D.C. 20015 (202) 237-2727 [email protected] March 8, 2016

APPENDIX14

Year Type of _Action Class of _{Aliens Affected} No. Comments

1956 Parole Orphans adopted by U.S. citizens abroad 923 Legislation was pending 1956 -72 Extended Voluntary Departure (EVD) Third preference visa petitioners

Unknown See U.S. ex

rel. Parco v. Morris, 426 F. Supp. 976, 979-80 (E.D. Pa. 1977) 1956 -58 Parole Hungarians 31,915 1959 -72 Parole Cubans 621,403 1962 -65 Parole Chinese 15,100 1975

-79 Parole Vietnamese, Cambodians, and Laotians

Nearly 360,000 1976 EVD Lebanese Unknown 1977 Suspended

Deportation “Silva letterholders” 250,000 1977 EVD Ethiopians At least

15,000 Extended in 1982

14 _{Sources: CRS Report, supra; Karl R. Thompson, Principal}

Deputy Assistant Att’y General, OLC, Memorandum Op., for the Sec’y of Homeland Security and the Counsel to the President, The Department of Homeland Security’s Authority to

Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others (Nov. 19, 2014);

Am. Immigration Counsel, Executive Grants of Temporary

1977

-80 Parole Soviet nationals Union Over 50,000 Issued after statutory cap on conditional entries was met

1978 EVD Ugandans Unknown

1978 EVD Nurses Unknown 43 Fed. Reg. 2776

1979 EVD Nicaraguans 3,600 1979 EVD Iranians Unknown 1980 EVD Afghans Unknown 1981

- 1987

EVD Polish 7,000 Extended in 1984 and 1987 1987 AG directed INS to refrain from deportation Nicaraguans 150,000-

200,000 Legislation was pending

1987 Indefinite Voluntary Departure Certain children and spouses of aliens eligible for legalization under IRCA (“Family Fairness”) Over 100,000 families Nelson Statement; see also discussion above 1989 - 1990 Deferred Action & Deferred Enforced Departure (DED) Chinese 80,000 1990 Voluntary

departure All spouses and children of aliens eligible for legalization under IRCA (“Family Fairness”) 1.5

million McNary Memo; see

also

discussion above

1992 DED Salvadorians 190,000 Issued after expiration of legislative grant of temporary protected status. 1997 DED Haitians 40,000 Legislation

was pending 1997 Deferred

action

VAWA beneficiaries

Unknown Virtue Memo 1998 Temporary deportation suspension Salvadorians, Guatemalans, Hondurans, and Nicaraguans 150,000 Hurricane Mitch

1999 DED Liberians 10,000 Issued after expiration of legislative grant of temporary protected status 2001 -02 Parole, deferred action, and stays of removal “T” and “U”

visa applicants Unknown

2005 Deferred

Action Students affected by Hurricane Katrina

Unknown Legislation was pending

2007 DED Liberians 10,000 Issued after expiration of legislative grant of temporary protected status 2007 Executive

discretion Nursing mothers Unknown Myers Memo 2009 DED Liberians Unknown

2009 Extended deferred action Foreign born spouses and children under the age of 21 of United States citizens who had died

Unknown Memo from Donald Neufeld, USCIS, to Field Leadership, Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children (Sep. 4, 2009) 2010 Parole Haitian orphans in the process of being adopted Unknown Haitian earthquake 2011 Deferred

action Victims of human trafficking and sexual exploitation Unknown 2011 DED Liberians 3,600 2012 Deferred

action Foreign born individuals who entered the United States before their 16th

birthday and were under the age of 31 as of June 2012

Up to 1.8

million Legislation was pending